Case Laws Reflecting the ‘Relations between Governmental Organs Executive-Legislature’

63 Pages Posted: 20 Jun 2010

See all articles by Gautam Jayasurya

Gautam Jayasurya

Rajiv Gandhi National University of Law

Date Written: June 19, 2010

Abstract

“Long years ago we made a tryst with destiny,” said Jawaharlal Nehru on the eve of the independence, and now time comes when we shall redeem our pledge.

On August 15, 1947, after ruling the subcontinent for over 200 years, the British surrendered power and India became a free country. India adopted the path of parliamentary democracy. The British parliamentary system left a lasting impress on it; due to the colonial legacy the framers of the Indian Constitution borrowed this system primarily from England. The freedom of the judiciary was taken from the USA. The USA did impart considerable power to the judiciary and made the judiciary free of the biased influence of the executive and the legislature. So the USA set an example of the freedom of judiciary before the whole world.

It is pertinent to point out that the Supreme Court of the USA is the earliest in the modern democratic world. The USA is one of the countries to have adopted the ‘principle of separation of powers’. There is a clear and distinct line that separates the three major organs - the executive, the legislature and the judiciary. As a result the USA had had a glorious past of 200 years of peace, progress and harmony. Its chief reason is that the powers of the three organs of the government are obviously written in the Constitution.

To keep the Constitution supreme in the country, India made the biggest written Constitution in the world. Jennings also describes it as “the largest written Constitution in the world”. So the Constitution of India gave powers to the three pillars of the government - the executive, the legislature and the judiciary. The Founding Fathers of our Constitution gave importance to justice at the highest pedestal than the other principles in the Preamble of our Constitution. The Preamble clearly demonstrates the precedence of social and economic justice over political justice because the people go to the judiciary in quest of justice. The Constitution lays down the structure and defines the limits and demarcates the role and functions of every organ of the state, including the judiciary, and establishes the norms for their inter-relationship, checks and balances.

Independence of the judiciary is essential for upholding the rule of law. So checks and balances with separation of powers is one of the most characteristic features of our Constitution. It is to be noticed that the powers of the three pillars must be balanced and none of these should be in excess of the others.

Since the legislature represents the people, controls the government and makes law, no one can interfere with its freedom and authority to do so. The judiciary has to adjudicate disputes, interpret the Constitution, “declare the law” and pass the necessary order “for doing complete justice.” The Supreme Court is the final authority for interpreting and pronouncing on the provisions of a law. Any law which is violative of constitutional provisions is invalidated. The power of judicial review has always been there with the Supreme Court and cannot be taken away. The executive operates and enforces the law made by the legislature. However, a number of occasions have come in the parliamentary history of our country when there is a tug of war between the legislature and the judiciary. In fact the tug of war between the executive government and courts has occurred ever since the courts have been established. In 1608 in the case of Bonham Lord Coke systemized the judicial review of the laws made by Parliament in Britain that if any law which is against the Constitution or impossible to enforce, the judiciary will invalidate such law.

After almost two centuries in 1803 Marshall, the Chief Justice of the American Supreme Court, systemized in the same way referring to the case Marbury versus Madison. The government objected to it raising the query as to how the unelected judges could invalidate those laws made by the elected members of Parliament while there is no provision for this in the Constitution of the USA. In the world the legislature is mostly troubled by the fact that the unelected judges interfere with the functions of other organs of the government in the name of interpretation. US President Jefferson pointed out: “Judicial activism makes a thing of wax in the hands of judiciary which it can give the shape as it wishes.” According to Lord Saimond, “Judicial activism abducts directly the legislative functions in the name of interpretation.”

Suggested Citation

Jayasurya, Gautam, Case Laws Reflecting the ‘Relations between Governmental Organs Executive-Legislature’ (June 19, 2010). Available at SSRN: https://ssrn.com/abstract=1627185 or http://dx.doi.org/10.2139/ssrn.1627185

Gautam Jayasurya (Contact Author)

Rajiv Gandhi National University of Law ( email )

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